Issue link: https://read.dmtmag.com/i/119220
COMMUNITY LAW Overcoming Protections Under the Servicemembers Civil Relief Act BY IRENE L. KIET, Esq. Property owners face difficult challenges when ber, during a period of military service of the the servicemember has not received due process attempting to evict a tenant who is on "active" servicemember, from premises that are (1) oc- under the law. In addition, a court may grant military duty. On December 19, 2003, Presi- cupied or intended to be occupied primarily as a a stay of proceedings for a minimum of ninety dent Bush signed into federal law the Service- residence; and (2) for which the monthly rent (90) days on the court's own motion if the members Civil Relief Act (SCRA), 50 U.S.C. does not exceed $2,400, as adjusted under court determines that: 1) there may be a deApp. ยงยง 501 et seq. The SCRA allows military housing price inflation for years after 2003; or fense to the action and a defense cannot be premembers to suspend or postpone some civil ob- subject such premises to a distress during the sented without the presence of the defendant; ligations so that the military member is able to period of military service. or 2) after due diligence, counsel has been undevote his or her full attention to military duWhen an active military defendant is unable able to contact the defendant or otherwise deties. This new law was a complete revision of to make a "general appearance" in court, the termine if a meritorious defense exists. former law known as the Soldiers' and Sailors' defendant cannot be "defaulted" unless the However, not all situations are black and Civil Relief Act passed in1940. property owner (1) files a signed affidavit stat- white, but really shades of "gray." In a recent The SCRA's case, a mobilehome purpose is to park resident who was strengthen and in the military and who The SCRA allows military members to suspend or postpone failed to pay rent was expedite national defense by giving some civil obligations so that the military member is able to served a Three-Day servicemembers and Sixty Day Notice devote his or her full attention to military duties. This new law prior to being called on certain protections in civil acactive duty. Unbewas a complete revision of former law known as the Soldiers' knownst to the proptions. The SCRA protects erty owner, the and Sailors' Civil Relief Act passed in1940. the interests of resident was called on persons on active active duty after the military service and relieves them from the "dis- ing whether or not the defendant is in active filing of the Summons and Complaint. The tress" that may adversely affect servicemembers' military service and showing necessary facts to case required a combination of timing and key civil rights during their military service. The support the affidavit or (2) if the property contacts with military personnel. It was reSCRA applies to all members of the United owner is unable to determine whether or not the vealed that the defendant returned to the premStates military and those U.S. citizens serving defendant is in active military service, stating ises temporarily (but was still on active duty). in the military of United States' allies during a that that the property owner is unable to deter- The Park's counsel notified the military resident time of war or military action. A few examples mine whether or not the defendant is in active of the pending unlawful detainer trial and he of the obligations from which a servicemember military service. subsequently appeared at trial. At trial, the may be protected are: outstanding credit card If it appears that the defendant is in active defendant requested an appointment of an atdebt; mortgage payments; evictions; taxes; and military service, the court may not enter a judg- torney and a trial continuance. The trial court termination of residential leasehold estates. ment until the court appoints an attorney to was un-convinced that the servicemember resIn cases of an eviction, unless there is a court represent the defendant, which is akin to a ident failed to have the wherewithal to respond order, a property owner cannot evict a service- criminal court appointing a public defender to to the unlawful detainer action. The Court member, or the dependents of a servicemem- represent an "indigent" defendant. Otherwise, agreed with the property owner's position that APRIL 2013 26 THE JOURNAL